[2025] EWCA Civ 1211

The appellants contend that, even if a natural person must sign personally, a company can only sign a document through the action of an agent, and since it is not suggested that s.53(1)(b) precludes a company from creating an enforceable trust over land, it must be construed as permitting the necessary writing to be signed by a duly authorised agent of the company.

The appellants cite in support the decision of the Court of Appeal in UBAF Ltd v European American Banking [1984] QB 713 (“UBAF”). That case concerned a claim for fraudulent misrepresentation. By s.6 of the Statute of Frauds Amendment Act 1828:

“[N]o Action shall be brought whereby to charge any Person upon or by reason of any Representation or Assurance made or given concerning or relating to the Character, Conduct, Credit, Ability, Trade, or Dealings of any other Person, to the Intent or Purpose that such other Person may obtain Credit, Money, or Goods upon, unless such Representation or Assurance be made in Writing, signed by the Party to be charged therewith.”

In Swift v Jewsbury and Goddard (1873-74) LR 9 QB 301 at p.312, it had been decided that a man should not be liable for a fraudulent misrepresentation as to another person’s means unless he put it down in writing, and acknowledged his responsibility for it by his own signature. The justification for excluding the signature by an agent of a natural person was explained by Lord Coleridge CJ in Swift, at pp.311 to 312:

“the subject of section 6 is the charging of a person for an act of fraud, and it may well be—and, without diving very deep for motives, one cannot help seeing that there was an excellent motive for that enactment—that a person should not be proved fraudulent without the matter which is the evidence of his fraud resting on his own signature to a document to be produced,—that it should not rest, as before that time it might have rested, on the conflict of evidence as to oral communications. If you mean to charge a person with a fraudulent act, whereby you have been damnified in respect of the conduct of another, you shall not charge that person unless you can produce his own handwriting for the statement of fraud by which you say you have been misled.”

The representation relied upon in UBAF was in a letter signed by the defendant bank’s “assistant secretary”, a Mr Macheras. The defendant sought to strike out the claim on the basis that the assistant secretary’s signature on the letter was not sufficient for the purposes of s.6. The Court of Appeal held that, for the purposes of s.6, a written representation was made by a company if it was signed by its duly authorised agent acting within the scope of his authority. On the facts there was an issue that would need to go to trial, as to whether the assistant secretary had signed the letter in the course of his ordinary duties, and whether the letter was within his general authority to sign. It was not necessary, however, to show that the assistant secretary had been authorised by a resolution of the board to sign the letter.

Ackner LJ, giving the judgment of the Court, observed at p.719F-G that a corporation cannot sign a document otherwise than by some human agency. It was submitted by counsel for the defendants in that case (Mr Leonard Hoffmann QC as he then was) that in order for a corporate person to lose the protection of s.6 the signature must be of a person who is the corporation’s “alter ego”. Ackner LJ described that description as “largely meaningless”, and observed that Mr Hoffmann had been compelled to accept (rightly, thought Ackner LJ) that if Mr Macheras had been specifically authorised by a resolution of the board to sign the representations, then the defendants would have been bound: see p.719H to p.720A.

Having quoted the passage cited above from Swift v Jewsbury, Ackner LJ said, at p.723 H:

“None of this, however, appears in the least appropriate to the case of a corporation which is incapable of signing any document at all save by some human agency…”

At p.724D-G, he concluded as follows:

“In any event, even if 80 years ago or so it was assumed that the signature of a duly authorised officer or employee, acting in the course of his duties in the business of the company, was not the signature of the company, then it must also be recalled that it was not until Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259 in 1867 that it was finally decided by the Court of Exchequer Chamber that the doctrine of vicarious liability extended to the fraudulent act of the agent of the company committed in the course of its business and for its benefit. The law relative to corporate activities has developed considerably over the years and cannot be taken to have stood still all this time. Parliament is continually placing the obligation on corporate bodies to serve notices in writing of one kind or another and, in the case of local authorities, has expressly provided for such documents to be signed by the proper officer: section 234(2) of the Local Government Act 1972. Since a company, not being a physical entity, can only act in relation to the outside world by its agents, no one nowadays would question that the signature of the duly authorised agent of the company, acting in the course of the company's business, is the signature of the company.”

Mr McQuater first submitted that UBAF is a case confined to s.6 of Statute of Frauds Amendment Act 1828, and it has no application to s.53(1)(b). I do not accept this. The rationale for requiring, in the case of natural persons, that it is their own signature on the relevant representation is because a person ought not to be found liable in fraud for such a representation where his personal involvement in making the statement rests on a conflict of oral evidence. A similar rationale underpins s.53(1)(b): the owner of land ought not to be fixed with personal liability as a trustee where the question whether they have declared a trust rests on a conflict of oral evidence. The reasoning of Ackner LJ applies with as much force, in my view, to s.53(1)(b).

Had this case arisen in 1984, when UBAF was decided, I would have been inclined to follow that decision. The law relating to execution of documents by a company has, however, moved on since then, as Mr McQuater submitted.

In the passage from UBAF quoted above, Ackner LJ said that no-one would question that the signature of a duly authorised agent was the signature of the company. At that time, there was no statutory mechanism for the execution of documents, generally, by a company. Provision was made in the Companies Act 1948 only for the execution of contracts or deeds. By s.32 of that Act:

This was replaced, without material change, by s.36 of the Companies Act 1985. In 1989, however, s.36A was added, which made provision for the execution of documents, generally, by a company:

“(1)

Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company.

(2)

A document is executed by a company by the affixing of its common seal.

(3)

A company need not have a common seal, however, and the following subsections apply whether it does or not.

(4)

A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.

(5)

A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed.”

On the enactment of the Companies Act 2006 this was further revised, s.44 of that Act providing as follows (with contracts being governed by s.43):

“(1)

Under the law of England and Wales or Northern Ireland a document is executed by a company-

(a)

by the affixing of its common seal, or

(b)

by signature in accordance with the following provisions.

(2)

A document is validly executed by a company if it is signed on behalf of the company-

(a)

by two authorised signatories, or

(b)

by a director of the company in the presence of a witness who attests the signature.

(3)

The following are “authorised signatories” for the purposes of subsection (2)-

(a)

every director of the company, and

(b)

in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

(4)

A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the company has the same effect as if executed under the common seal of the company.”

Section 44 does not in fact apply to NIOC, as it applies only to companies incorporated under the Companies Acts (see s.1 of the Companies Act 2006). The position in relation to overseas companies is governed by regulation 4 of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 (“Regulation 4”). I return to the detail of Regulation 4 when considering Ground 2. For present purposes, however, what matters is that statute now prescribes how a company (whether one incorporated here, or an overseas company) may itself execute a document, as opposed to how a document may be executed by an agent on its behalf.

That distinction was explained in Hilmi (see above at §‎42). That case concerned the giving of notice by four tenants under s.99(5) of the Leasehold Reform, Housing and Urban Development Act 1993. At the time (as I have noted above at §‎62), the sub-section distinguished between notices given by the tenant, and notices given by or on behalf of the tenant. Three of the tenants were individuals and signed personally. The fourth tenant was a company, and the notice was signed by a Mr Hickey, who said in a witness statement that he was a director and authorised to sign on behalf of the company. The question on the appeal was whether his signature amounted to signature of the notice “by the company”.

Lloyd LJ, with whom Pitchford LJ and Ward LJ agreed, noted (at §7) the changes to company law made by the Companies Act 1989, specifically the introduction for the first time, in s.36A, of a provision regarding the execution of documents other than contracts and deeds by a company.

In an earlier case, City & Country Properties Ltd v Plowden Investments Ltd [2007] L & TR 225, HHJ Reid had concluded that the way in which a company could itself sign a document was regulated by s.36A of the Companies Act 1985, so that the signature of a single director was insufficient. In Hilmi, HHJ Dight had reached the opposite conclusion, finding that the concept of execution is reserved for more formal situations, and did not apply to notices. His reasoning (cited by Lloyd LJ at §14 of Hilmi) was that the purpose of requiring the tenant’s personal signature under s.99(5) was to ensure that the tenant “really knew what he was doing” and that:

“A company, being an artificial person, can only act through agents and whether it ‘signs’ a document via a single officer or ‘executes’ a document in accordance with section 36A of the 1985 Act it does so through agents. Thus compliance with section 99(5) has to be via an agent of the company in any event. However, whenever a company acts through the agency of an officer authorised to so act on its behalf the company has, in my judgment, personal knowledge of the transaction in which its officers are acting. In doing so the purpose of section 99(5) … will have been fulfilled.”

At §17, Lloyd LJ noted that counsel for neither party had been able to find any case in which a court has had to consider how a company can and does sign a document personally, other than contractual documents which were governed by other legislation. Mr Thanki submitted that there was one obvious case – namely UBAF – which, being Court of Appeal authority, was binding on the Court in Hilmi, and that the failure to refer to it renders the decision in Hilmiper incuriam. I do not accept this, as explained at §‎105 below.

At §21 and following, Lloyd LJ addressed the distinction that was advanced by counsel for the appellant in that case, between documents of a degree of formality such that one could speak of their “execution” by a company, and other less formal documents (including notices under s.99(5) of the Leasehold Reform, Housing and Urban Development Act 1993) where it would be unnatural to speak of them being “executed”. He concluded (at §26 to §27) that it posed serious difficulties:

“This interpretation of section 36A would result in there being four different categories of document made (to use a general word) by a company: contracts governed by section 36, deeds governed by section 36A and section 36AA, other documents “executed” by a company governed by section 36A, and yet other documents made by a company but not “executed” by a company, to which none of these sections would apply. The fourth category would be those documents which it is not natural to describe as being “executed” by a company. Mr van Tonder was not able to put forward a submission as to what documents would fall into the third and the fourth categories respectively, save that he said a notice under section 13, or correspondingly under section 42, of the 1993 Act would be in the fourth category, not governed by section 36A. That reading of the 1985 Act would give rise to a remarkable degree of confusion and uncertainty, as to which documents fall into which category. Moreover there would be no general rule applicable to the fourth category of documents. I can see no proper basis or justification for differentiating between types of document made by a company (other than contracts and deeds) for this purpose and in this way.”

Lloyd LJ continued (at §28):

“…at any rate in the context where some degree of formality is required to make a document valid and effective for some particular legal purpose (and the point can only arise in such a context), it is appropriate and natural to speak of the execution of the document, as a matter of ordinary language. That is so even for a document to be made under hand rather than by deed. In particular, it is so for a document which is to be signed by, as distinct from on behalf of, a legal entity such as a limited company.”

Accordingly, he concluded (at §31), that “Section 36A of the 1985 Act did prescribe how a company registered under the Companies Acts could itself sign a document which was required for some formal legal purpose.” That must now be read as referring to s.44 of the Companies Act 2006. The failure to cite UBAF to the Court of Appeal in Hilmi does not, in my view, detract from Lloyd LJ’s conclusion or reasoning. As I have already observed, there was no statutory mechanism for a company to execute documents, other than contracts and deeds, when UBAF was decided, and Lloyd LJ’s reasoning is firmly based on the change in the law brought about by the Companies Act 1989. UBAF was not, therefore, an authority which bound the Court of Appeal in Hilmi to reach the opposite conclusion.

Hilmi is not in itself determinative of the answer so far as s.53(1)(b) is concerned, nor is the fact that Lloyd LJ (at §17) identified s.53(1)(b) as the only other statutory provision requiring a personal signature that had been cited to the Court in Hilmi. The nature of the requirement for written evidence of a declaration of trust is considered in depth under Ground 3 below. As explained there, s.53(1)(b) goes to the evidence required to prove a declaration of trust, not to its validity. It is not required, therefore (to borrow the language of Lloyd LJ quoted above) “to make the document valid and effective for some particular legal purpose”. On the other hand, the requisite written evidence does serve an important legal function – enabling the beneficiary of the trust to establish its existence so as to be able to obtain its enforcement in court proceedings. That, in my judgment, is a sufficient legal purpose to constitute the degree of formality needed to engage s.44 of the Companies Act 2006.

For these reasons, I consider that the signature of an agent, whether a natural person or a company, does not suffice for the purposes of s.53(1)(b). I would therefore dismiss the first ground of appeal.

NIOC contends, in the alternative, that the Mortgage Documents were signed by it and not on its behalf. It does so on three bases.

First, following UBAF, it contends that a company can only sign via an agent, so that a document signed by its duly authorised agent is treated as signed “by” the company. I reject that argument, for the reasons already given above under Ground 1.

Second, it contends that the signature on the Mortgage Documents satisfied the requirements of Regulation 4. That substitutes a revised version of s.44 which provides, relevantly, that:

“(1)

Under the law of England and Wales or Northern Ireland a document is executed by an overseas company-

(a)

by the affixing of its common seal, or

(b)

if it is executed in any manner permitted by the laws of the territory in which the company is incorporated for the execution of documents by such a company.

(2)

A document which-

(a)

is signed by a person who, in accordance with the laws of the territory in which an overseas company is incorporated, is acting under the authority (express or implied) of the company, and

(b)

is expressed (in whatever form of words) to be executed by the company,

has the same effect in relation to that company as it would have in relation to a company incorporated in England and Wales or Northern Ireland if executed under the common seal of a company so incorporated.”

The judge did not address the possibility that NIOC had complied with Regulation 4 for the simple reason that NIOC did not advance this case at trial.

Mr Thanki contended that NIOC’s case was sufficiently pleaded before the judge, that the judge’s finding that the Mortgage Documents were executed by NIOC acting by its attorney was a sufficient finding that NTT was duly authorised to execute the documents, and that it was therefore for CGC to advance a case that NIOC had not complied with Regulation 4.

So far as the pleadings are concerned, NIOC pleaded in its defence (at paragraph 86(10)) simply that the Mortgage and other documents were evidence in writing for the purpose of s.53(1)(b). CGC pleaded in its reply (at §20(2)(a)(iv)) that s.53(1)(b) was not complied with. Those documents on their face revealed that they were executed by someone purporting to be authorised to do so on behalf of NIOC.

NIOC sought further information as to CGC’s denial that the documents relied on by NIOC constituted declarations of trust. In response, CGC pleaded, among other things, that NIOC could not rely upon statements made by agents and/or third parties since that did not satisfy the requirement for writing in s.53(1)(b).

Nobody appears to have focused on the possibility that signature of an authorised person on behalf of NIOC was a signature by NIOC. Given the terms of Regulation 4, had NIOC wished to advance such a case it would have needed to plead the requirements of Regulation 4 including, critically, that NTT was authorised in accordance with Iranian law. It did not do so. It adduced no evidence of Iranian law to establish such authorisation, and did not run an argument based on Regulation 4 at trial. The judge’s observation that the Mortgage Documents were executed by NIOC acting by its attorney (see §186 of the judgment) cannot be regarded as a finding that NTT was authorised in accordance with Iranian law, as this was not an issue that was before him for decision.

While there is no general rule that a case needs to be exceptional before an appellate court will allow a new point to be taken on appeal, the court must nevertheless exercise caution before doing so. It will consider all relevant factors, including the nature of the proceedings in the lower court, the nature of the new point and any prejudice that may be caused to the opposing party: Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337; [2019] 4 WLR 146. At §27 to §28 of that case, Snowden J, with whom Longmore and Peter Jackson LJJ agreed, referred to cases at one end of the spectrum of possible cases, where the policy arguments in favour of finality of litigation carry greater weight, and where the appeal court would be less likely to allow the new point to be run. These are cases where there has been a full trial involving live evidence and cross-examination in the lower court, and where the new point, if taken at trial, would have changed the course of the evidence or required further factual enquiry. This is such a case. At the very least, the parties would be required to investigate, and call evidence, on Iranian law, if NIOC were permitted to take this point.

The third way NIOC puts its case under Ground 2, based on s.74(4) LPA 1925, can be disposed of shortly. This sub-section provides:

“Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of any other person (including another corporation), an officer appointed for that purpose by the board of directors, council or other governing body of the corporation by resolution or otherwise, may execute the deed or other instrument in the name of such other person; and where an instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorised.”

It is doubtful whether s.74(4) applies to the creation of a trust, because that does not involve any conveyance of an interest in property. Mr Thanki himself submitted in relation to Respondent’s Notice Point 1 that a declaration of trust involves the creation of a new interest, not the conveyance of an existing interest: see, for example, Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7, a decision of the High Court of Australia, at §44, per Bell, Keane, Nettle and Edelman JJ:

“it is fundamental that the creation of a trust involves the creation of new equitable obligations, which are ‘annexed to the trust property’ or ‘engrafted’ or ‘impressed upon it’. The creation of a trust never involves the ‘movement’ of property in the sense of a conveyance of title from one person to another.”

As against this, however, it might be said that the broad definition of “conveyance” in section 205 of LPA 1925 (including a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will) extends to a declaration of trust.

It is unnecessary to resolve that point, because even if s.74(4) does apply, it only gets NIOC so far. Assuming it is correct that NTT was authorised under a power of attorney to execute a declaration of trust on behalf of NIOC, all that s.74(4) does is permit Mr Rahgozar, as an officer of NTT, to execute the declaration of trust by signing it in the name of NIOC. There is nothing in the section, however, that renders that signature the signature of NIOC (as opposed to the signature of someone authorised to act on its behalf, and in contrast to s.74(3)). Section 74(4) does not therefore solve NIOC’s difficulty in the face of my conclusion that s.53(1)(b) requires the signature to be that of NIOC.

After circulation of the draft judgment, Counsel for NIOC indicated that NIOC relied also on s.74(3). Although this had been referred to briefly in its grounds of appeal and written skeleton, at the hearing Mr Thanki relied only on s.74(4). Mr McQuater noted that s.74(3) – which dealt with individuals not corporations and so did not appear relevant – had not been relied on in oral submissions by Mr Thanki, and passed over it. No mention was made of s.74 in reply by Mr Thanki. In fact, Mr Thanki had been right to place no reliance on s.74(3) in oral submissions. That subsection provides that

“Where a person is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of a corporation sole or aggregate, he may as attorney execute the conveyance by signing the name of the corporation in the presence of at least one witness who attests the signature, and such execution shall take effect and be valid in like manner as if the corporation had executed the conveyance.”

The way the point was put in NIOC’s skeleton was as follows:

“The 2019 Mortgage Deed was signed by Mr Rahgozar, who was appointed for that purpose by NTT (NIOC’s attorney) to sign the 2019 Mortgage Deed in the name of NIOC, which he did in the presence of a witness (Mr Bayat).  On this basis too, the 2019 Mortgage Deed is to be treated as having been signed by NIOC.”

In Counsel’s email sent after the circulation of the draft judgment, NIOC’s case was said to be that the effect of s.74(4) was to render Mr Rahgozar’s signature that of NTT in its capacity as attorney; whereupon the effect of s.74(3) was to render NTT’s signature that of NIOC. This attempt to combine the effect of subsections (3) and (4) does not work. As Mr McQuater said at the hearing (to which there was no response), s.74(3) deals with execution by an individual as attorney for a corporation (referring to a person who, as attorney for a corporation, signs in the presence of a witness). Its effect was to render Mr Rahgozar’s signature that of NTT, because NTT is the relevant “corporation” and Mr Rahgozar is the relevant “attorney” for the purposes of s.74(3). It does not have the further effect of rendering NTT’s signature that of NIOC.