[2025] EWCA Civ 1211

NIOC and the Fund contend that the default position under the common law is that a person sufficiently “signs” a document if it is signed in their name and with their authority by somebody else. While a statute may require that in particular circumstances a signature must be given by a particular person, such statutes are exceptional, and on the proper construction of s.53(1)(b), it does not exclude signature by an agent. The appellants developed the case on the construction of s.53(1)(b) as follows:

Mr Thanki and Mr Grant submitted that the judge’s reasoning, based on the comparison between s.53(1)(b) on the one hand, and sub-paragraphs (a) and (c) on the other, does not withstand scrutiny. Sub-paragraphs (a) and (c) require the disposition itself to be in writing and the reference to signing by an agent who is authorised in writing is explained as a limitation on the common law position that a person may sign via an agent. It makes sense to limit an agent’s ability to sign to where it is authorised in writing, because that ensures a chain of writing between the principal and the document effecting the disposition of the interest in land.

NIOC and the Fund also contend that, even if s.53(1)(b) precludes signature by the agent of a natural person, where a trust is declared by a company, the signature of any person duly authorised by the company will suffice.

Mr McQuater, on behalf of CGC, did not dispute that at common law a person can sign a document via a duly authorised agent. It is sufficient to cite in this respect the recent decision of this Court in Northwood (Solihull) Ltd v Fearn [2022] EWCA Civ 40; [2022] 1 WLR 1661. That case concerned the validity of a notice and a certificate which was required to be served by a landlord under certain housing legislation. Lewison LJ (with whom Newey LJ and Snowden LJ agreed) referred (at §22) to the “general rule” that “a person is treated as having signed a document if it is signed on his behalf and with his authority”, citing Romer LJ in London County Council v Agricultural Food Products Ltd [1955] 2 QB 218, at 223-224:

“It is established, in my judgment, as a general proposition that at common law a person sufficiently ‘signs’ a document if it is signed in his name and with his authority by somebody else; and in such case the agent’s signature is treated as being that of his principal.”

At §28 to §29 in the same case, Lewison LJ referred to Lord Hoffmann’s comment in General Legal Council Ex p Whitter v Frankson [2006] 1 WLR 2803 that “there are statutes which, exceptionally, require a personal signature and exclude performance by an agent”.

As Mr McQuater submitted, however, this takes one back to the core question: whether on its true construction s.53(1)(b) permits “some writing” to be that of an agent. In addition to the contrast between sub-paragraphs (a) and (c) of s.53(1), as pointed out by the judge, CGC relies on the contrast with s.40 LPA 1925, as enacted, where signature by an agent is specifically permitted. It contends that this shows that where the draftsman of the LPA 1925 intended signature by an agent to suffice, this was expressly stated.

Mr McQuater submitted that the judge’s interpretation also better accords with the purpose of s.53(1)(b), which is to protect the owner of land from the “perils of oral evidence being misused to deprive him of his land”. This is achieved by requiring direct settlor involvement in the written proof of the declaration of trust. The appellants’ construction, it is contended, would remove the requirement of direct settlor involvement and thereby expose the owner of land to an enhanced risk of fraud.

CGC did not dispute that an agent could declare a trust over their principal’s property, but submitted that this would require clear, express prior authorisation, which would be unusual (citing, for example, Reckitt v Barnett [1928] 2 KB 244, at p.268 per Russell J: “an attorney cannot, in the absence of a clear power to do so, make presents to himself or to others of his principal’s property”).